Once again the Ohio Supreme Court has ignored prior court decisions and has re-shaped the landscape by finding that the recently-enacted Employer Intentional Tort Statute is constitutional. Prior to this decision, Ohio workers were entitled to bring an action directly against their employers when the employers required the workers to do work tasks that involve great risk and the employers knew that injuries were substantially certain to occur. In those situations, the employee was required to prove that the employer's actions constituted wanton misconduct, the most egregious form of negligence -- i.e. a complete absence of due care. This right of the employee was developed in a series of cases decided by the Ohio Supreme Court.

The Ohio legislature has three times tried to restrict this right. On two prior occasions, the Ohio Supreme Court found that the legislation violated the Ohio Constitution and struck down the law. The third attempt used language similar to the two prior attempts. This time, however, the Ohio Supreme Court decided that the legislature did have the right to change the law. Without overruling the two prior decisions, the Ohio Supreme Court in a 6-1 decision, so severely limited those decisions that they were de facto overruled.

The effect of the decision is that injured workers' sole remedy will be Worker's Compensation unless they can show that the employer acted both deliberately and intentionally to cause them injury. As the one dissenting justice wrote, injured workers must now prove at a minimum that the employer's actions amounted to a criminal assault. From a practical standpoint, an employee no longer has a remedy in the state courts when the employer acts wantonly in creating significant dangers for the employee in the workplace.